AFRICAN arbitration practitioners are under-represented considerably in a number of arbitration matters.
However, all is not lost as arbitration is undoubtedly growing as a mechanism for the resolution of domestic and cross-border commercial disputes. Dispute resolution outside the state-sponsored system of litigation is not new. It was indeed the norm in pre-colonial times.
The modern-day arbitration regime is usually regulated by the state through legislation and enforcement by national courts. It is fair to say that there has been considerable growth on the continent’s arbitration industry. In the workplace, disputes are likely to arise between the employer and the employee, and among employees themselves. As an arbitration practitioner, I have come to understand the benefits of using this form of dispute resolution in the workplace.
The 2018 SOAS Arbitration in Africa Survey revealed some of the benefits of the practice in different environments. Solving disputes in the workplace using attorneys and courts is not only time-consuming, but can also be costly for both parties. The speed and informality of the arbitration process represent the key reasons by businesses for choosing arbitration over litigation. In many cases, arbitration is a far shorter process and without the use of attorneys generally less costly. The two parties involved in the dispute have control over the selection of the arbitrator.
This is a different case altogether when dealing with a court case, where the judge and jury selection is out of the hands of the parties involved. Arbitration hearings are private and the results are not part of the public record, which is beneficial for both parties, especially with regard to future employment as public records of such a matter could influence some employers negatively.
Emotional intelligence has proved to be one of the vital ingredients to creating a healthy workplace. The term emotional intelligence was coined by Peter Salovey and John Mayer. They described it as “a form of social intelligence that involves the ability to monitor one’s own and others’ feelings and emotions, to discriminate among them, and to use this information to guide one’s thinking and action”.
Within the profession of arbitration, this is the foundation upon which the approach is centred. It is with utmost importance that when resolving a dispute, a third party is in a position to empathise with both parties and yet remain impartial when it comes to the issue at hand. It has been proved that arbitration in the workplace can be successful, provided the environment is less formal compared to that of a court.
Renowned HR practitioner Laszlo Bock once said that satisfied employees are 20% more productive, which is vital for the existence and growth of a business. Arbitration gets to the root cause of the problem and solves it from an unbiased perspective without losing the empathetic view of things. Therefore, it is important for employers to make use of arbitration to provide a safe space where disputes can be resolved in an affordable and timeous manner.
Ajibola Dalley is a barrister and solicitor of the Supreme Court of Nigeria, a Fellow of the Chartered Institute of Arbitrators (UK), a notary public and honorary member of the Africa Committee of the Commercial Barristers Association of England and Wales.